Tuesday, November 01, 2005
Some brief clarifications, and then I really want to drop the Supreme Court for a while.
First, I overstated when I said business groups got "nothing" from Alito. Clearly, he's been pretty favorably inclined to business on employment law issues, and to some extent on shareholder suits. What I meant was: he's not someone who brings a depth of experience in corporate law to the table. He's not the go-to guy on, say, anti-trust. Business groups clearly wanted someone with that kind of background, and they didn't get it. But Alito is not someone they would actively *dislike* - just not their first choice.
Second, I am more sure than I was yesterday that Alito will be confirmed without difficulty, because the smart guys in the Democratic camp are coming out, basically, in favor - see, for example, the latest New Republic online, with basically positive pieces by Akiba Covitz (arguing Alito differs from Scalia in background and, more importantly, temperament), Cass Sunstein (arguing that Alito is basically deferential to established institutions, and does not have a radical revisionist plan for the law), and Mark Tushnet (arguing that we don't really know whether Alito will be as deferential to the Executive as is currently assumed, and that anyhow it doesn't matter much because the courts are poorly placed to check the Executive; that's Congress's job).
What's my impression, personally? I think he's kind of boring, which, personally, I don't love, because I like things to be interesting, but rationally, boring is exactly what you want on the Court. I'm a bit disappointed that Bush picked someone so similar to Roberts in so many ways; I liked Roberts a lot, but I think the "portfolio approach" to the Court has some merits, and here we have another careerist judge with impeccable credentials. He also strikes me as very much a prosecutor - again, not necessarily a bad thing, but just a comment. I think Sunstein is right that he's in no way a libertarian, and I think that's all to the good; the Constitution is not a libertarian tract, whatever Anthony Kennedy and Janice Rogers Brown, each in their very different ways, might think.
Needless to say, he deserves to be confirmed, and quickly.